Located in Virginia so obviously VA law.

Situation is this: Friend’s dad died last year. The family is trying to settle the estate and sell the house. An easement was created in 2003 to allow access to the property the house is on. Nothing is in writing but that easement has been in existence for 17 years. One family member has refused to consent to the sale of the house because the easement crosses one side of her property.

What is the precedent regarding existing easements or is there one? This is the only access to the property due to terrain.

No professional here. But that property gets an easement and the person doesn't want strangers (change) coming and going..... Might have to force a sell.
Do what many do ..sell and tell em to sue if they don't like it.

This bust many families up...
Consensus is best if it can be attained.

All three parties have to consent to the sale.

quote:

Originally posted by Leemur:
An easement was created in 2003 to allow access to the property the house is on. Nothing is in writing but that easement has been in existence for 17 years.

How was it created if nothing is in writing? Real easements are supposed to be recorded in property records and normally need an easement Plat created by a surveyor or engineer that accompanies any other documents that get recorded. So if nothing is in writing, then it doesn't exist. I'm not a land use attorney, but formerly spent 20 years in Virginia land development as Professional Civil Engineer. I think you need to see what the land records show.

Following just to see how many wrong answers are going to be submitted by people who are not members of the Virginia bar.

It's a pretty straightforward question provided someone knows the law specific for Virginia.

quote:

Originally posted by Mutiny:

quote:

Originally posted by Leemur:
An easement was created in 2003 to allow access to the property the house is on. Nothing is in writing but that easement has been in existence for 17 years.

How was it created if nothing is in writing? Real easements are supposed to be recorded in property records and normally need an easement Plat created by a surveyor or engineer that accompanies any other documents that get recorded. So if nothing is in writing, then it doesn't exist. I'm not a land use attorney, but formerly spent 20 years in Virginia land development as Professional Civil Engineer. I think you need to see what the land records show.

Are you certain that Virginia doesn't recognize prescriptive easements?

quote:

An easement was created in 2003 to allow access to the property the house is on. Nothing is in writing but that easement has

What does that mean, precisely? Someone cut down a tree and paved a driveway???

VA Easements MartinWren Law

Prescriptive easements. Another way to establish access to property is by means of a prescriptive easement. A prescriptive easement operates under the presumption of a grant that arises after a long, continuous, adverse, open use of a right‐of‐way over someone else’s property. The benefit of this type of easement is that it is not limited to lands which were formerly part of the same grant. The disadvantage is that it is usually not that common. In Virginia the period of time that the road must have been openly and adversely used is 20 years. Sometimes there may be the proper period of use, but the use may have been permissive. A common example of this is where the owner of the land has given permission to use the road. If that occurs then the running of the statutory fifteen year period is tolled. Another circumstance which may affect the claim is where the user of the road mistakenly believed he had the right to use the road. There is some authority in Virginia that such intent may fail to satisfy the requirement that the use be “hostile.”

quote:

Originally posted by Aeteocles:
Are you certain that Virginia doesn't recognize prescriptive easements?

That would depend on how Virginia defines 'hostile' or 'adverse' in the case of an easement given that the easement was created verbally (and thus, one would think, voluntarily by both the one granting the "easement" and the one using it). Here in TX, if it ain't on paper then it don't exist. In theory, adverse possession might begin when the person who verbally agreed to the use of the land no longer lives on the land on the theory that up until then owner merely permitted the use. Clearly the person using the 'easement' can't claim it was adversely possessed since they went to the land owner to request permission to use the access.

OP, what exactly does this 'easement' provide access to? Is there any other way of getting there?

quote:

Originally posted by Il Cattivo:
In theory, adverse possession might begin when the person who verbally agreed to the use of the land no longer lives on the land on the theory that up until then owner merely permitted the use.

In Colorado if an easement was expressly permitted, its use is therefore not adverse, but if permission was given it can be expressly withdrawn at any time or after any amount of time. On the other hand the state recognizes prescriptive easements as long as certain conditions of use are met: adverse (not expressly permitted), open and visible to the land owner, and for the statutory period.

(All that from my law professor cousin after discovering that the local sanitation district had an unrecorded and unknown line across our property.)

One question that will come up if discussing prescriptive easements is who has the burden to prove whether a use was adverse or permissive.

In some situations use of the land is presumed adverse and it will be up to the owner to show that the use was expressly permissive.

If there is a house involved, it would be difficult to claim that the easement was adverse.

I was thinking prescriptive easement as well. However, (in Florida) it is against the law to landlock a property.

An easement is created for the benefit of one or more parties and generally transfer with the sale of either party involved. If it wasn't recorded in the Official Records, I am not sure it is enforceable. If y'all have records of the easement, it should be easy.

Talk to the title company.

Curious - how did this come to be? Did one person own it all and at one point sell part to the living family member ? Did doing so landlock the property if not for the easement?

quote:

Originally posted by Aeteocles:
Following just to see how many wrong answers are going to be submitted by people who are not members of the Virginia bar.

It's a pretty straightforward question provided someone knows the law specific for Virginia.

Much more fun to guess.

I won't try because I don't know much RE law, and especially Virginia RE law.

quote:

Originally posted by Aeteocles:
Following just to see how many wrong answers are going to be submitted by people who are not members of the Virginia bar.

It's a pretty straightforward question provided someone knows the law specific for Virginia.

You seem to have allot of non answers ....
As a land owner I'll say that I have a rite to access my non road side land by the easiest, shortest way.

These issues remind me that I am glad to not be an attorney. No offense to practicing lawyers intended. I thought for a while it might be fun and had the attitude that lawyering was all about pushing people around.

An easement that is not in writing let alone not recorded is nebulous at best. Their only option to perfect it would be for all parties to join an agreement then recorded it. Next option is a Quiet Title action attempting to prove an adverse possession (or use) through the courts. Big bucks.

When the words estate, family, disagreement and easement appear in the same paragraph, it's time to get a professional. The estate should engage a lawyer licensed in, and has a practice that deals in, VA Real Estate law.

quote:

Originally posted by ZSMICHAEL:
I thought for a while it might be fun and had the attitude that lawyering was all about pushing people around.

This is how it was for me: I look at the proposed deal, tell you all the potential problems I see. You tell me I'm just being difficult and none of those things is ever going to happen. One or more of those things happen. You complain to me that it's my fault because I'm the lawyer and should have anticipated those issues.